As both businesses and employees adjust to changes in the workplace brought about by the COVID-19 pandemic, employers may find themselves subject to surprise OSHA inspections related to the steps taken to protect employees from exposure to the virus. Employers should continue to review the measures their business has in place to protect employees from workplace exposure and ensure it is consistent with the latest requirements - and have a plan of what to do if OSHA suddenly arrives for an inspection.
Employers in Oregon have a general duty to provide a safe and healthful workplace for their employees under the Oregon Safe Employment Act (OSEA). Workplaces must be free of recognized hazards that can cause or are likely to cause death or serious physical harm. Oregon OSHA recognizes exposure to COVID-19 as a potential workplace hazard.
Governor Kate Brown’s “stay-at-home” order issued on March 23, 2020 permits some businesses to continue operating so long as they have taken steps to ensure employee health is protected from exposure to the virus.
Such steps include:
- Provide teleworking options to the maximum extent possible.
- Implement policies to enforce social distancing where telework is not feasible.
- Provide personal protective equipment (PPE) to employees where social distancing is not feasible.
- Educate employees on workplace policies related to COVID-19 and make written policies available in the workplace.
- Designate someone in the workplace to identify and enforce policies related to COVID-19.
Oregon OSHA has received over 1,000 complaints related to employer compliance with OSHA rules and Governor Brown’s executive order, and has announced an intent to conduct surprise inspections to investigate the allegations. Oregon employers may be subject to fines for violations classified as “serious” and, in extreme cases, OSHA can shut down a business. Moreover, Oregon OSHA has stated that it believes it has the authority to enforce the requirements of Governor Brown’s orders as they relate to potential worker exposure to COVID-19, which carry additional monetary penalties for violations.
In the event OSHA shows up for an inspection, employers should:
- Have whoever meets the inspector contact the designated management-level person who will be the point of contact for the OSHA inspector and serve as a company representative.
- The representative should review the inspector’s credentials, ask exactly what the inspector has come to inspect, and accompany the inspector to that identified portion of the workplace while observing all applicable safety policies and procedures (including, of course, social distancing).
- Cooperate with the OSHA inspector and respond to their specific requests, but do not volunteer information that they have not requested.
- Written policies should be provided for review by the OSHA inspector if requested, and the inspector can talk to employees when it is safe to interrupt their work. If a request appears unreasonable or unsafe, ask the inspector for time before going forward. If possible, contact an attorney.
- Make a note of any details of the inspection, especially potential hazards or violations identified by the inspector, and note your responses.
Other COVID-19 OSHA resources:
- United States OSHA Guidance on Preparing Workplaces for COVID-19
- Oregon OSHA
- Oregon OSHA Interim Guidance Related to COVID-19
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.